1

Shortly before the release of this opinion the

Antiterrorism and Effective Death Penalty Act of 1996 was signed

into law; the Act aims to expedite the process of federal

collateral review. Because we deny the petition according to

pre-existing standards, we have no occasion to consider whether

the Act provides a basis for the denial of relief. We are

confident the Act does not help Hays. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-6378.

Henry F. HAYS, Petitioner-Appellant,

v.

STATE OF ALABAMA, C.E. Jones, Respondents-Appellees.

June 6, 1996.

Appeal from the United States District Court for the Southern

District of Alabama. (No. 93-623-CB-S), Charles R. Butler, Jr.,

Chief Judge.

Before KRAVITCH, EDMONDSON and BIRCH, Circuit Judges.

EDMONDSON, Circuit Judge:

Henry Hays petitioned for a writ of habeas corpus, alleging

constitutional errors in the state court proceedings surrounding

his conviction for murder and sentence of death. The district

court denied relief. We affirm.1

FACTS AND BACKGROUND

In 1981, the defendant Henry Hays ("Hays"), his father Bennie

Hays, and Henry's friend and later accomplice James "Tiger" Knowles

were following developments in the trial of a black man accused of

killing a white man. The three men, all members of the Ku Klux

Klan, discussed the likely public reaction to the hanging of a

black man. Perhaps worried about property values, Bennie Hays told

his son and Knowles to do nothing until Bennie had sold some
apartments on Herndon Avenue.

Shortly thereafter, according to Knowles's testimony, the

property sale closed. Hays and Knowles got a rope, which they tied

into a hangman's noose, and a gun from fellow Klansmen. The two

then set out to look for a black man. They randomly found Michael

Donald, pulled alongside him in their car, and asked for

directions. They forced him into the car at gunpoint. Knowles

made Donald empty his pockets; Knowles's trial testimony indicates

he wanted to be sure the victim was unarmed.

Hays found a desolate area and parked; all three men got out

of the car. Facing Hays and Knowles (who was holding the gun),

Donald jumped Knowles in an attempt to escape. After a struggle,

Hays and Knowles forced Donald to the ground. Hays retrieved the

noose, and the two of them put it around Donald's neck. Hays

dragged Donald while Knowles beat him with a tree limb; and when

Hays's hands began to hurt, they switched. When Donald collapsed,

the two men dragged him, face first, across the ground. Autopsy

reports showed Donald probably died from asphyxiation during this

time. Nevertheless, Henry Hays slashed Donald's throat. Donald's

body was found later that morning, hanging from a tree on Herndon

Avenue.

Hays was charged after a two year investigation. The

prosecution—after requesting a continuance, ostensibly because it

had not received some evidence—returned a new indictment one day

before trial. At trial, Hays was convicted; the jury recommended

life without parole; but the trial judge overrode the

recommendation and sentenced Hays to death by electrocution.
On direct appeal, the intermediate appellate court reversed,

holding the trial judge lacked the power to override the jury's

decision. Hays v. State, 518 So.2d 749, 767-68

(Ala.Crim.App.1985). The Alabama Supreme Court reversed the

appellate court and reinstated the death sentence. Ex parte Hays,

518 So.2d 768, 777 (Ala.1986). The U.S. Supreme Court denied the

petition for certiorari. Hays v. Alabama, 485 U.S. 929, 108 S.Ct.

1099, 99 L.Ed.2d 262 (1988). Petitions for post-conviction relief

were denied by the Alabama state courts, and the U.S. Supreme Court

again denied certiorari. The present petition for habeas relief

was denied by the district court in a comprehensive opinion.

DISCUSSION

I. Trial Counsel's Strategic Decisions

Hays argues his trial counsel was ineffective within the

meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984), because he (1) failed to interview Knowles

early enough; (2) never spoke to several defense witnesses before

putting them on the stand; (3) failed to examine physical evidence

early enough; (4) failed to request funds for an investigator;

(5) failed to attempt to show cause why Hays was entitled to grand

jury materials; (6) failed to use the testimony of Hays's father;

(7) failed to object to the introduction of uncharged criminal

offenses; (8) failed to object to the trial court's failure to

find mitigating circumstances; (9) failed to argue Hays's sentence

was disproportionate to Knowles's; (10) failed to object to the

court's failure to give a lesser included offense charge; and (11)

failed to object to the trial judge's override of the jury's
sentence recommendation.

The district court accepted Petitioner's assertions that these

acts constituted deficient performance. The court held, however,

that because the petitioner "completely omits any discussion of the

prejudice prong" of the Strickland formulation, and because the

"evidence against the petitioner at trial was such that even a

flawless performance by counsel would have had little effect on the

outcome," there was no denial of effective assistance.

 Petitioner's brief in this court also includes no discussion

of how better performance by trial counsel would have changed the

likely outcome of the trial or sentence; and we agree with the

district court that absent such a showing, Petitioner's Strickland

claims fail. See, e.g., Strickland, 466 U.S. at 693-94, 104 S.Ct.

at 2068 (petitioner arguing ineffective assistance "must show that

there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been

different"). To allege prejudice successfully, Hays must "show

that counsel's errors were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable." Lockhart v.

Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842, 122 L.Ed.2d 180

(1993) (citations and internal quotation marks omitted).

For those factors dealing with trial counsel's preparation of

witnesses and development of the facts (the claims numbered 1-6

above), Hays provides no explanation of how better preparation

might have changed the course of the trial. Thus, the alleged

errors cannot support reversal. See, e.g., Devier v. Zant, 3 F.3d

1445, 1452 (11th Cir.1993) (declining to grant relief where
petitioner "has not carried his burden of showing how the testimony

of these witnesses would have changed if they had been better

prepared").

 For factors 7-11, Petitioner again fails to show with

particularity how the decision not to make the listed objections

was constitutionally unreasonable or prejudicial. For example,

Hays nowhere argues that the evidence of uncharged offenses was

actually inadmissible or that that evidence probably swayed the

jury. See Strickland, 466 U.S. at 693-94, 104 S.Ct. at 2068

(requiring prejudice to be shown). Nor does he succeed in

demonstrating that mitigating circumstances could have been proved

under Alabama law. In view of the overwhelming evidence supporting

the verdict, we conclude there has been no showing, under

Strickland, that Hays's counsel's allegedly unreasonable errors

affected the outcome of the guilt or penalty phases of the trial.

II. Refusal to Grant a Continuance

 Hays also argues he was denied effective assistance of

counsel by the trial court's refusal of his request for a

continuance after the prosecution returned a new indictment,

alleging different facts, less than one day before trial was to

begin. The new indictment charged robbery-murder; the old

indictment had charged kidnapping-murder. Kidnapping-murder was

not punishable by death under the statute effective on the date of

Donald's murder. The original indictment did give notice of the

state's intent to seek the death penalty, but did not mention

robbery or the use of a gun.

As the Court noted in an analogous situation, the Constitution
"nowhere specifies any period which must intervene between the

required appointment of counsel and trial." Avery v. Alabama, 308

U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940). Thus, in

this context, the courts must "respect ... the States'

determination of local social policy." 308 U.S. at 447, 60 S.Ct.

at 322. "[B]road discretion must be granted trial courts on

matters of continuances; only an unreasoning and arbitrary

insistence upon expeditiousness in the face of a justifiable

request for delay violates the right to assistance of counsel."

Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616, 75

L.Ed.2d 610 (1983) (citations and internal quotation marks

omitted).

 This instance is not one where circumstances conspired to

create a "presumption" that ineffective assistance changed the

likely outcome of the trial. In United States v. Cronic, 466 U.S.

648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Court carved a

narrow exception to the general rule that those persons claiming

ineffective assistance must show prejudice. 466 U.S. at 658-59,

104 S.Ct. at 2046-47; see also Stano v. Dugger, 921 F.2d 1125,

1152 (11th Cir.1991) (en banc). Prejudice is presumed when counsel

was either totally absent or prevented from assisting the accused

during a critical stage of the proceedings, Cronic, 466 U.S. at

662, 104 U.S. at 2049, or if counsel entirely failed to subject the

prosecution's case to meaningful adversarial testing. Id. But,

this case is not one of those situations. Therefore, Hays must

show prejudice. Because he cannot, his ineffective assistance

claim fails.
From the start, the strategy followed by Hays's trial counsel

was to contend that Knowles acted alone and later implicated Hays

to increase his chances of a reduced sentence. The decision to

present an alibi defense was not undermined by the prosecution's

change in its theory of the underlying felony. Hays was simply not

present during the murder, according to the defense; and therefore

the presence or absence of a gun should not have significantly

impacted the defense's preparation of witnesses and arguments for

trial.

Because the denial of the continuance had no substantial

impact on the orderly preparation for trial, the circumstances of

the denial of the continuance are similar to (but, far less

egregious than) the facts of Avery, supra. There Justice Black,

writing for a unanimous Court, held that no Sixth Amendment

violation occurred when the petitioner's lawyers were appointed on

Monday for a trial scheduled to begin Wednesday and a continuance

was denied. Nothing concrete indicated that extra time could have

changed the trial's outcome.

For one thing, Avery's trial took place in "a County largely

rural," where access to witnesses is easier than elsewhere. Avery,

308 U.S. at 452, 60 S.Ct. at 324-25. Here, Hays's attorney had

access to the only two witnesses to the murder. And, the record at

Avery's trial showed an "absence of any indication ... that

[counsel] could have done more had additional time been granted."

Id. Hays's habeas counsel claims that interviews and tests

pertaining to the gun were necessary; but in the years since the

trial, no evidence has emerged to show that such a course would
 2

As a preliminary matter, the district judge held that

knowledge of statements in the possession of federal agents could

be imputed to the state. This conclusion was based on the level

of cooperation between the state prosecutors and the F.B.I. See

United States v. Antone, 603 F.2d 566, 570 (5th Cir.1979)

(looking to the "extent of cooperation between the two

governments" to determine whether possession should be imputed). 

Citing no cases, the state argues here that the district court's

holding was error. We decline to conclude that the district

court erred in this case on the imputation issue. 

have changed the evidentiary balance at trial. In addition, we

also conclude, as discussed above, that Hays has failed to make out

a compelling case for ineffective assistance based on trial

counsel's strategic decisions. Thus, the facts in Avery, where

counsel was found not to be ineffective, closely parallel those

here. And, the substantial evidence supporting the fact of the

robbery suggests that even with more time, the verdict would have

been the same. Thus, Hays was not deprived of "a trial whose

result is reliable." Lockhart, 503 U.S. at 369, 113 S.Ct. at 842.

III. Suppression of Witness Testimony

 Hays argues the state violated its obligation to turn over

exculpatory evidence in its possession by withholding some 20

statements made by Knowles, the state's main witness, which Hays

alleges could have been used to impeach. The District Court held

that the state suppressed the statements, and the defense had no

other source.2

 Thus, Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194, 10 L.Ed.2d 215 (1963), requires a new trial if the petitioner

has shown, in addition to the above two factors, that the

information was favorable to the defendant and that, "had the

evidence been disclosed to the defense, a reasonable probability

exists that the outcome of the proceedings would have been
different." See United States v. Meros, 866 F.2d 1304, 1308 (11th

Cir.1989) (setting out four-factor test for determining whether

evidence is Brady material).

The issue is thus whether it is reasonably probable that the

suppression of the statements caused a different outcome at trial.

The Supreme Court recently decided Kyles v. Whitley, --- U.S. ----,

115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), which discussed the

"reasonable probability" standard of Brady. Without announcing new

rules, the Court cited four guideposts for determining materiality.

First, "a showing of materiality does not require demonstration by

a preponderance that disclosure of the suppressed evidence would

have resulted ultimately in the defendant's acquittal." Kyles, ---

U.S. at ----, 115 S.Ct. at 1566 (citing United States v. Bagley,

473 U.S. 667, 680-84, 105 S.Ct. 3375, 3383-84 (1985). Thus,

undisclosed evidence can require a new trial even if it is more

likely than not that a jury seeing the new evidence would still

convict. A defendant must show simply that "the Government's

evidentiary suppression undermines confidence in the outcome of the

trial." Kyles, --- U.S. at ----, 115 S.Ct. at 1566 (citations and

internal quotation marks omitted).

Second (and logically implicit in the first rule), a defendant

need not show there was insufficient evidence to convict in view of

the suppressed evidence. Id. Third, there is no harmless error

review of Bagley errors. Id. Fourth, materiality is to be

determined collectively, not "item-by-item." Id. at ----, 115

S.Ct. at 1567. The Supreme Court's reiteration, in Kyles, of the

prejudice standard of Brady is consistent with the threshold set by
 3

Knowles contends he withheld some aspects of the crime at

first because, though he wanted to confess, he was still

uncomfortable revealing to authorities just how "gruesome" the

details of the crime were. 

the district court.

 Whether a reasonable probability existed that the suppressed

evidence would have changed the outcome is a mixed question of law

and fact, and this court's review is de novo. United States v.

Rivalta, 925 F.2d 596, 597-98 (2d Cir.1991).

The "statements" at issue are actually memos about statements

made by Knowles, recording the recollections of federal and state

agents. Hays asserts two theories to explain why suppression of

the statements requires reversal: first, the suppressed

statements, taken together, show Knowles to be so totally unworthy

of belief that a jury would have rejected his testimony entirely.

Second, specific inconsistencies in the statements would have cast

enough doubt on critical junctures in the prosecution's version of

the murder to undermine confidence in the verdict.

Hays argues first that the suppressed statements, in total,

showed Knowles to be so inconsistent in his retelling of Donald's

murder that no rational juror could have credited Knowles's

testimony. The district court disagreed, writing that the

suppressed statements show not a pathological dishonesty, but

rather a consistent progression from obfuscation to truth-telling.

That is, Knowles's testimony, taken in the light of all of his

statements, shows a pattern of first withholding and then divulging

more and more of his ultimate version of the crime.3 Also, the

withheld statements are almost uniformly consistent with Knowles's
trial (that is, later) testimony. That the statements would have

helped, rather than hindered, Knowles's overall credibility at

trial is thus very possible. In any event, we agree with the

district judge's observation that trial counsel succeeded in

compelling Knowles to admit to so many lies that the marginal

impact of the suppressed statements would have been insignificant.

Thus, we reject Hays's suggestion that the withheld statements show

such a pattern of inconsistency as to create a "reasonable

probability" that a jury hearing them would have rejected Knowles's

testimony in toto.

In his brief to this court, Petitioner also enumerated several

specific inconsistencies between Knowles's earlier and later

accounts of the crime, each of which ostensibly could have been

highlighted only by reference to the suppressed statements. These

are: (1) Knowles earlier said Donald voluntarily agreed to ride in

the car; he later said he used the gun to force Donald into the

car. (2) Knowles earlier said he and Hays picked Donald up without

intending to kill him; later he said they did so intend. (3)

Knowles earlier omitted any mention of the use of the gun; but he

later admitted the gun was used. (4) Knowles earlier said the

cross-burning that occurred the night of the murder was unrelated

to the murder, and later contradicted this statement.

Taken together, these assertions do not undermine confidence

in the verdict. The main reason for this is that most of the

asserted uses of the suppressed statements would have been

redundant, because Hays's counsel in fact elicited testimony from

Knowles on the witness stand acknowledging that he had been
 4

For example, when asked successively about a number of

inconsistencies, Knowles admitted lying about the fact that

Donald got into the car voluntarily:

Q. And you told [the investigating agent] in that same

statement that you called Michael Donald over to the car and

he got in voluntarily to show you the way to a club?

A. Yes, sir.

Q. That's another lie, huh?

A. Yes, sir.

Tr. Trans. at R-273.

Knowles also admitted (more than once) that he had

given numerous statements, in his early rendition of the

murder, in which he omitted any mention of the use of a gun. 

For example:

Q. Did you give [the previously read statement] to Mr.

Tom Calhoun of the Mobile Police Department?

A. Yes, I did.

Q. Did you make any mention in that statement about any

gun?

A. No, sir, I did not.

Tr. Trans. at R-209.

Finally, Hays's counsel did read a statement indicating

an agent's recollection that Knowles said "they [he and

Hays] did not intend to hurt" Donald when they picked him

up. Tr. Trans. at R-208. This testimony was also

contradicted by other statements Knowles made on the stand.

Thus, at least three of what Petitioner regards as the

most effective uses of the suppressed statements would in

fact have added little or nothing to the defense case. 

inconsistent on many of the listed points. 4 And on others

(particularly the relatedness of the murder and cross-burning), no

obvious reason suggests that the jury would have regarded the

inconsistency as particularly significant. Therefore, we conclude

that Petitioner's argument on the materiality of the alleged Brady
statements fails.

IV. The State's Use of Allegedly Perjured Testimony

 Knowles testified at his plea hearing in federal court

(pursuant to which he was sentenced to life in prison) that he and

Hays did not intend to kill Donald when they picked him up or when

they first got the rope with which Donald was hung. But at Hays's

trial, Knowles testified they set out that night with the intent to

kill a black man.

Napue v. Illinois, 360 U.S. 264, 268-70, 79 S.Ct. 1173, 1177,

3 L.Ed.2d 1217 (1959), dictates that knowing use by the prosecution

of perjurious testimony violates a defendant's right to due

process. But, as the district court points out, there has been no

showing that Knowles's later, rather than earlier, testimony was

false; and the circumstances of Knowles's testimony (which show a

progression toward greater revelation of the truth) indicate it is

likely the former was untrue. Because Hays can cite no case

holding that plea testimony must be consistent with later

testimony, use of Knowles's testimony did not violate due process.

Hays also contends the prosecution unconstitutionally refused

to disclose that Knowles's testimony was obtained in exchange for

a plea bargain. Giglio v. United States, 405 U.S. 150, 92 S.Ct.

763, 31 L.Ed.2d 104 (1972), requires such disclosure. Hays has

inferred that because Alabama never prosecuted Knowles for the

murder, there must have been an agreement; the state responds

there was none. Hays has presented no evidence that there was an

agreement between state agents and Knowles; and the jury was fully

informed of Knowles's plea agreement with the federal government.
There was no Giglio violation.

V. The Sufficiency of the Evidence of Robbery-Murder

 Hays argues the state did not present sufficient evidence at

his trial to prove intent to rob. Intent to rob was an element of

the underlying offense, and therefore proof beyond a reasonable

doubt was required under In re Winship, 397 U.S. 358, 361, 90 S.Ct.

1068, 1071, 25 L.Ed.2d 368 (1970).

Donald was carrying money given to him by a relative when he

was last seen, and his wallet was not with the body. The money was

never found. Knowles testified he and Hays had Donald empty his

pockets to ensure Donald had no weapons. The district court found

this satisfied the intent requirement because Hays and Knowles

intended to deprive Donald of weapons, but instead deprived him of

cash: "The fact that Donald did not have the item Knowles and the

petitioner were seeking does not render their intent illusory, any

more than the intent present in a mugger's "Your money or your

life' demand is negated when the victim hands over his watch in

place of cash." Hays contests the analogy, arguing there was no

true intent to take weapons, only to ensure their absence.

 The intent to rob under Alabama law is the intent to take and

carry away the personal property of another by force or by putting

the other in fear of the use of force. Davis v. State, 401 So.2d

187, 189 (Ala.Crim.App.1981). Applying this test, the intent to

deprive someone of weapons provides the requisite intent,

regardless of whether self-protection is the overriding motive.

Taking a wallet with this goal in mind is robbery; and, therefore,

Knowles's testimony on his and his accessory's state of mind is
sufficient evidence to convict for robbery-murder.

 Hays also asserts there was no intent to kill. He cites

testimony by Knowles that the two set out to harass, not to kill,

a black person. But as noted in the state post-conviction

proceedings, under Alabama law "[p]remeditation and deliberation

may be formed while the killer is pressing the trigger that fired

the fatal shot." See Hays v. State, 599 So.2d 1230, 1238

(Ala.Cr.App.1992) (citations and internal quotation marks omitted).

Thus, in view of the extensive testimony about Donald's ordeal (the

beating with the tree limb, the dragging by the noose, and the

slitting of his throat), that Hays might not initially have set out

to kill Donald is of no consequence.

VI. The Trial Judge's Override of the Jury Recommendation

 After the jury recommended life without parole, the trial

judge overrode the recommendation and sentenced Hays to death. At

the time, Alabama law was unsettled on what weight the trial judge

had to accord the jury recommendation. Hays challenges the trial

judge's decision to override on a number of theories that are

grounded, in his view, in the Eighth and Fourteenth Amendments.

A. Was Override of the Life Sentence Permitted Under Alabama Law?

Hays cites a passage from Beck v. State, 396 So.2d 645, 663

(Ala.1980), stating that "If the jury cannot agree on a sentence of

death, the defendant shall be sentenced to life imprisonment

without parole." He argues that this language from Beck precluded

the trial judge's override of the jury's life-without-parole

recommendation, and he asserts that Alabama's failure to follow its

own law violated due process.
 5

As Chief Justice Marshall wrote in Cohens v. Virginia, 19

U.S. (6 Wheat) 264, 399, 5 L.Ed. 257 (1821):

It is a maxim not to be disregarded, that general

expressions, in every opinion, are to be taken in

connection with the case in which those expressions are

used. If they go beyond the case, they may be

respected, but ought not to control the judgment in a

subsequent suit when the very point is presented for

decision. The reason for this maxim is obvious. The

question actually before the Court is investigated with

care, and considered in its full extent. 

 Petitioner is due no relief on the grounds that Alabama has

misinterpreted its own law. See Pulley v. Harris, 465 U.S. 37, 41-

43, 104 S.Ct. 871, 875, 79 L.Ed.2d 29 (1984) ("A federal court may

not issue the writ on the basis of a perceived error of state

law."). See also Parker v. Dugger, 498 U.S. 308, 327, 111 S.Ct.

731, 742, 112 L.Ed.2d 812 (1991) (White, J., dissenting) ("It is

axiomatic that ... the views of the State's highest court with

respect to state law are binding on the federal courts.") (citing

cases) (internal quotation marks omitted). And even if we, as did

the Court in Pulley, assume for the sake of argument that some

errors of state law might be so "egregious" as to offend the due

process or equal protection clause, we conclude that the Alabama

Supreme Court in Ex parte Hays committed no such error in reading

the relevant language from Beck. A sufficient reason for our

conclusion is that Beck decided nothing about whether a judge could

impose death when the jury had voted for life imprisonment: that

question was not presented in Beck.5

 And to say the least, no

egregious error glares out of Ex parte Hays's ultimate conclusion

that the death penalty law under which Hays was sentenced permitted
 6

After discounting the Beck dictum, Alabama's Supreme Court

persuasively explained why upward override is permitted. First,

the court explained that the quoted language could be squared

with Beck 's holding—that ultimate sentencing authority lay with

the judge—only by interpreting the quoted language to mean that

if the jury cannot unanimously agree on death, the jury shall

recommend a sentence of life imprisonment. Ex parte Hays, 518

So.2d 768, 775 (Ala.1986).

Second, the court also explained why the 1975 Alabama

death penalty act explicitly allows the judge to override in

favor of life but not in favor of death. This seeming

omission is because as initially drafted, the capital

sentencing statute simply did not allow a jury to recommend

life imprisonment without parole in the first place. Once

the Beck decision permitted juries to recommend life, judges

impliedly became permitted to override in favor of death. 

See id. at 775-76.

As the district judge pointed out, there are other

instances when Alabama law can most plausibly be read to

afford the jury ultimate sentencing authority, but where

such is not the case (because the judge can override). The

instant circumstances present another one of those cases. 

Thus, we decline to hold that erroneous application of state

law to the petitioner violated the Fourteenth Amendment. 

upward override.6

 Thus, the state courts' alleged

misinterpretation of Alabama law gives rise to no ground on which

the writ might issue.

B. Was Hays Afforded the Minimum Notice Required By the

Constitution That Death Was a Possible Sentence?

 Petitioner's claim that there was inadequate notice of the

possibility of an override must likewise fail; and Lankford v.

Idaho, 500 U.S. 110, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991), is not

to the contrary. In Lankford, the Supreme Court held the

petitioner was afforded inadequate notice where the prosecution

stated, in response to a question from the trial judge, that the

state would not seek the death penalty. The trial judge there had

never announced before the sentencing hearing that death was a

possible sentence. Here, however, the defendant got two days'
 7

Hays concedes in his brief that this argument is foreclosed

by Harris but then goes on to make the argument anyway,

apparently in an effort to preserve the issue for higher

appellate review. 

notice from the trial judge that he might override the jury. And,

the prosecution here sought the death penalty from the beginning of

trial, in contrast to Lankford. Because the prosecution's tack

gave Hays an incentive to build a case from the start for life

imprisonment rather than death, two days is sufficient notice.

C. Did the Alabama Sentencing Scheme Sufficiently Channel the

Discretion of the Judge and Jury?

 Hays argues further that the Alabama sentencing scheme

dividing the responsibilities of jury and trial judge at the time

he was sentenced was standardless and failed to accord due

deference to the jury's sentence recommendation. The Supreme Court

rejected this argument in Harris v. Alabama, --- U.S. ----, 115

S.Ct. 1031, 130 L.Ed.2d 1004 (1995). In Harris, the court held

there is no constitutional requirement that a judge assign any

minimum degree of weight to a jury recommendation. The issue is

simply whether "the scheme adequately channels the sentencer's

discretion so as to prevent arbitrary results." Id. at ----, 115

S.Ct. at 1035. Considering a sentencing scheme materially

identical to the one here, the Harris Court held there was adequate

channeling of discretion. Here, the trial judge was explicit about

his reasons for overriding the jury sentence, and he noted that he

considered the jury recommendation; there was therefore no

violation of Hays's right to due process.7

D. Did the Trial Court's "Upward Override' Violate the Ban on Ex

Post Facto Laws?
 Petitioner next contends the Alabama Supreme Court's decision

in Ex parte Hays (holding application of the death penalty to be

proper) functions as an ex post facto law. As the district court

held, and as we have discussed earlier, however, the Alabama

Supreme Court's decision clarified, rather than altered, the

meaning of the Alabama death penalty statute pursuant to which Hays

was sentenced. In view of this conclusion, no need exists to

address Petitioner's argument that the change in the law was

substantive, not procedural, under Dobbert v. Florida, 432 U.S.

282, 292-94, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977).

E. Did the Motive For the Override Violate the Equal Protection

Clause?

Petitioner argues that the Alabama Supreme Court's mention of

the number of white defendants on death row in Alabama for the

killing of blacks (zero) indicates an intention to "balance the

books" by considering the petitioner's race in determining

sentence, in violation of his right to equal protection. But, this

mention was only part of an extended discussion of elements

favoring the imposition of the death penalty. These elements were

Hays's moral depravity, the shocking nature of the crime, and the

inability to explain the jury's sentence. And, even if the Alabama

Supreme Court did look at historical statistics, it might just as

well not have been to "balance the books" but to find some

motivation to explain the jury's failure to impose the death

penalty. That is, the Alabama Supreme Court was attributing a

racial motive to the jury's decision, rather than setting out a

racial motive for its own decision to reinstate the sentence

imposed by the trial judge. See, e.g., Ex parte Hays, 518 So.2d at
776-77 (noting that "[t]he jury's recommendation of life

imprisonment in this case is unquestionably a bizarre result," and

recalling that in previous cases "the death penalty had likely been

imposed in an arbitrary or capricious manner based upon racial

discrimination"). By setting out this historical background, the

Alabama court was merely suggesting a possible reason for a

sentence that it would have reversed regardless of the jury's

underlying methodology. Because Hays has failed to meet his burden

of showing a decision-maker acted with a discriminatory purpose,

his equal protection argument fails. McCleskey v. Kemp, 481 U.S.

279, 296-97, 107 S.Ct. 1756, 1769, 95 L.Ed.2d 262 (1987).

In conclusion, Petitioner's conviction did not violate

constitutional rights. The decision of the district court is

AFFIRMED. The petition for the writ of habeas corpus is DENIED.